...Acheson Decision (I couldn't get the entire title on the subject line).

This is the latest in a series of occasional posts about the blindness and the disability rights community that I, as a totally blind person, share with this Board.

https://www.dailykos.com/stories/2023/12/8/2210335/-Disability-advocates-breathe-a-sigh-of-relief-at-Supreme-Court-s-Acheson-decision?detail=emaildkll&pm_source=DKLL&pm_medium=email&link_id=12&can_id=c9d4df46b8d481ae42811bcb827b9810&email_referrer=email_2144675&email_subject=cartoon-a-prescription-for-texans

From the article:

"Disability avocates are breathing a sigh of relief after the Supreme Court ruled unanimously Tuesday to dismiss as moot
Acheson Hotels LLC. v. Laufer, a case that could have gutted a key enforcement tool of the Americans with Disabilities Act nationwide.

At issue was whether civil rights testers have standing to sue hotels they have no intention of staying at, a practice that disability and civil rights advocates argue is necessary to force businesses to comply with accessibility standards set by the ADA. Standing is the right to sue by dint of being an
impacted party.

“We are thrilled tester standing remains a tool under the ADA,” said Shira Wakschlag, senior director of legal advocacy and general counsel for the Arc of the United States. The Arc advocates on behalf of people with intellectual and developmental disabilities and their families.

The case involved Deborah Laufer, a disabled woman and self-described civil rights tester who sued hundreds of hotels for not listing accessibility information on their websites — a violation of the Americans with Disabilities Act. Laufer did not intend to stay in these hotels.

Acheson Hotels LLC, which owns the Coast Village Inn and Cottages in Maine, a hotel named in one of Laufer’s lawsuits, argued that Laufer lacked standing.

Businesses like hotels and restaurants have long argued that private ADA lawsuits are an undue and expensive burden used to extract money for unscrupulous lawyers. Disability advocates argue that much of America is still inaccessible to them over 30 years after the passage of the Americans with Disabilities Act and that if businesses do not want to be sued, then they should comply with the law.

The case arrived at the Supreme Court after lower federal courts split on the issue — the U.S. Courts of Appeals for the First, Fourth and 11th Circuits ruled that Laufer does have standing, while the Second, Fifth and 10th Circuits ruled she did not. The Supreme Court’s decision means that there is still
some uncertainty and that tester standing will be left at the discretion of specific lower courts for now. The door is open for a future case in the Supreme Court."

A little further down comes an interesting and troubling concurring opinion.

"Harris described the decision as a mixed one for disability and civil rights advocates.

“I think this is not an unequivocal victory for tester standing. I think this is definitely a caveated win,” Harris said.

Harris pointed to Justice Clarence Thomas’s concurrence, which says, in part:  “Because Laufer has not asserted a violation of a right owed to her, shehas no standing. … The Court should not have avoided reaching that conclusion due to Laufer’s eleventh hour tactics. I respectfully concur in the judgment
because I would vacate and remand, with instructions to dismiss for lack of standing.”

Because it is a concurrence, it does not have any legal weight, but it does suggest how Thomas and the other conservative justices may deal with a similar case in the future.

“What Justice Thomas said is that [the question of standing] can be decided. The court correctly held, though, that given the underlying facts in this particular case, that this was not the time to decide that question,” Harris said.

Wakschlag expressed similar concern about Thomas’s concurrence and is worried that the court may still rule on the issue in ways that are unfavorable to the disability community. The specific facts of this case allowed for it to be dismissed, but civil rights testing under the Americans with Disabilities
Act may not be able to dodge another bullet.

“Justice Thomas basically said he would hold that Ms. Laufer did not have standing to sue under the ADA. His concurrence gives a preview of what the disability community was concerned about, in terms of undermining the precedent. Of course, it is just a concurrence,” Wakschlag said."

The disability rights community will live to fight for this issue on another day.

Edit to place O/T in the subject line



Edited 1 time(s). Last edit at 12/15/2023 01:36AM by blindguy.

Interesting. I guess that is sort of good news?

I don't have confidence in SCOTUS furthering any form of civil rights long term at this point.

dagny Wrote:
-------------------------------------------------------
> I don't have confidence in SCOTUS furthering any
> form of civil rights long term at this point.

Neither do I. This decision is, to be blunt, a way of putting off a final decision until some future date.

About a decade ago I was on crutches for 3-4 months, and started to get an inkling of what disabled people deal with on a daily basis. Two examples involved medical settings. One was at my physician's office where the nearest curb cut to get into his office was a half a block down from the handicapped parking space. The second was at a hospital clinic with no automatic door. I was knocked to the ground, crutches askew, trying to yank open a regular, heavy hospital door to get to the clinic. The hospital put in an automatic door soon after my fall.

If even medical practitioners can't get it right, what hope is there for other establishments?

That's Thomas inviting more challenges to the ADA as he and Alito have been doing with reproductive rights, privacy rights, etc. They are telling their fellow travelers exactly what cases to bring or even to manufacture.

I'm glad that this element of the ADA has been affirmed. I would note, however, that large parts of the ADA, like those dealing with student learning disorders, are routinely ignored across the country.

>> large parts of the ADA, like those dealing with student learning disorders, are routinely ignored across the country.

Do you have some examples? (...asking out of genuine curiosity.) Not following an IEP is a recipe for a lawsuit just about anywhere in the U.S.

First, I agree with what blindguy wrote just below. My point here, though, is to reply to summer.

I was indeed alluding to educational law in general and to IEPs in particular. I have some experience in the field and am familiar with the situation in a few states, which of course does not necessarily reflect the situation of the country as a whole--although I think it probably does.

Let's take NY for example. There schools do everything they can not to diagnose kids with learning disabilities. Going to outsiders for a diagnosis can cost anywhere from $3,000 to $10,000, which rules out all the poor kids. If you go to the special ed classes, under whatever name they are operated, you see almost exclusively minority kids and virtually no white children. Why? Because the minority families have neither the money nor the cultural nous to demand better treatment.

If you go through the trouble of getting an IEP, what happens is that the school administration ignores much or all of it and does whatever they want. Ultimately the only way to get the education the child needs is for the parent to pull her out and put her in private school. After paying for however many years of private tuition is required, you then go to the school district and sue for reimbursement. But at that point the family may have expended $200,000. Again, the poor have no chance of bearing such a burden in the hope that they may some day get it back and hence cannot avail themselves of the legal option.

When the case goes into arbitration, the parents are forced to negotiate a settlement that will not be anywhere near the total expenditure. If a family is lucky, it will get 70% of the money back: 100% is exceptionally rare. Conversely, if you refuse the mediated offer and go to court you risk receiving zero reimbursement or perhaps nothing more than what you owe the lawyers.

So yes, violating an IEP does lead to law suits although not from the parents of poor kids, who can't do any of this. And the suits are not frightening to the schools but rather seen as business as usual. They have permanent legal staff to handle the pretrial negotiations and the much lower number of actual trials; and they know how to settle at the cheapest price possible.

That's why I suggested the schools "routinely ignore" their legal obligations to those with learning differences. Those kids are put into the machine, which deprives the indigent and the badly parented children of any recourse and then systematically close deals that only reimburse a portion of the more fortunate students' parental outlays. That is not what the ADA promised or envisioned and yet the schools and the courts do it all the time.

I can only speak to Maryland, where I live. Here, children with mild to moderate learning disabilities are generally handled well. Most experienced teachers can pick up on the signs very easily, make the appropriate referrals, and get the child an IEP. Accommodations are routine, i.e. text read aloud to the student, extra time to complete assignments and tests, shortened assignments, preferential seating, extra response opportunities, etc. Students remain in the regular classroom, and get small group intervention from the Special Ed. teacher and other interventionists. In some cases they might have a 1-on-1 aide.

I suspect you are talking about the more severe cases, in which case I agree with you -- the public schools often do not want to take on the cost of properly educating these children. Normally the students go to a self-contained classroom environment where they get small classes and individualized attention. Students with severe dyslexia, for example, would likely benefit from a special reading program such as Orton-Gillingham. Yet the public schools where I live do not offer training in O-G and similar programs to special educators. Which means that a student might be best served by attending a private school that caters to learning disabilities, and costs tens of thousands of dollars in tuition each year. Hence the need for the lawyers.

Other areas such as students on the autism spectrum, or who have mental health issues, etc. each have their own areas of concern.

One thing that I will say is that at times, I've seen both parents and students "weaponize" IEPs, meaning that they use the IEP as a free pass. A student for example, might refuse to do any work, which they are perfectly capable of completing with accommodations. Since failing an IEP student is a nightmare best avoided, the student and the parents know that the student will pass regardless of effort.

ETA: I've spent most of my career working in Title 1 schools, which tends to inform my thinking. Parents where I work are mainly concerned about their children passing and eventually graduating. But I started off my career in a suburban, middle-class school where I would occasionally see a lawyer attending an IEP meeting along with the parents. I know a lot less about that environment. But I sure had my share of bat-guano crazy parents there. One parent strenuously objected to me spending a few weeks teaching my 4th grade class how to write a proper paragraph, because her daughter was evidently beyond that. *sigh*



Edited 1 time(s). Last edit at 12/15/2023 06:14AM by summer.

I know nothing about Maryland other than what you have said and who the governor is. It could be that you are in one of the better states.

In the few states that I know well, the system is more cynical than your experience would indicate. The school administrators feel inadequately funded and are determined to minimize their special education bill. So teachers are basically taken out of the equation. Parents complain, counselors shrug, parents appeal to the administration, school psychologists find that the kid has no problem, parents then spend a ton of money getting an outside diagnosis that the school must accept. Meanwhile a year or two have passed and the school hasn't provided any help.

And it's not a question of severe versus marginal learning disabilities. In fact, the marginal cases are easier to deny. There are schools that will raise a child's grades in order to undermine the parents' claim that he has a learning disorder. The more severe cases are harder to deny, but even there you can ignore the IEP or stall on its implementation until the parent goes to court.

The logic is clear: cut costs through delay and reliance on the courts, which also take a lot of time. Voila, a family that has been seeking help since early middle school only gets real help in the last year or two of high school.

Do well-intentioned teachers get rewarded for arguing in favor of a dyslexic or ADHD student? I would say the opposite is more common: you are punished explicitly or subtly for not defending the school and its finances. As you know, teachers are not as respected in the US as they were in the past.

Now that LW has replied, I will add some insights. The ADA has been very successful in some areas, including increasing wheelchair access to public buildings and placing braille notation on elevators in many public, and some private buildings. Areas where ADA gains have yet to be realized in part or in full include: the unavailability of accessible paper currency to blind people living in the U.S., despite a Federal court mandate that goes back over a decade now; the inability to get some public schools, particularly those in inner city and rural areas, to provide braille training and support for totally blind students; the inability of many totally blind students to access on-line university bulletin board software (because that software is either partially or fully inaccessible to this community); and, closer to the nub of this case, the inability of private employers to promote those disabled employees, particularly the blind, after they have been hired. Some of these areas are very nuanced and may require more financial and logistical support from state and Federal entities than either is willing or able to give.

Lot's Wife Wrote:
-------------------------------------------------------
> That's Thomas inviting more challenges to the ADA
> as he and Alito have been doing with reproductive
> rights, privacy rights, etc. They are telling
> their fellow travelers exactly what cases to bring
> or even to manufacture.

I agree, though I think that even those two are getting their marching orders from elsewhere.
>
> I'm glad that this element of the ADA has been
> affirmed. I would note, however, that large parts
> of the ADA, like those dealing with student
> learning disorders, are routinely ignored across
> the country.

As the article suggests, the decision is not so much an affirmation as it is a kicking of the can down the road. As to your second sentence, one has to remember that there are fewer in the disabled field willing to make claims than among other groups. Part of this is due to their size in the population at large and part is also due to how many disabled people were trained by their parents and others not to rock the boat.

As a non-American, I am minded to ask: what's the point of having laws if you can't get them applied? This "standing" business seems like a great way of wriggling out of giving an answer - as your Supreme Court appears to have done.

After all, there's a law, but they are not applying it - so their (in)action is illegal.

While I agree with you in principle, I think it likely that had the Supreme Court actually ruled on the case's actual merits, many in the disabled community and their supporters would have been absolutely up-in-arms over the legal rights that were taken away from them. This "non-decision" at least allows the disabled community and its supporters to continue to have access to this necessary tool for remediation, at least in the short term.

The need to have standing can prevent a lot of BS cases that do not really affect a given person. However in the case of the disability community, it has been so difficult to enact change that pre-emptive cases might very well be necessary. For every person who brings a lawsuit, hundreds of other disabled people might have been affected by a failure to accommodate.